Justice at risk by judge election campaign dollars, says @BrennanCenter @JusticeStake

Let me talk (for a few days) about judge elections and judicial merit selection.

Before you change the channel, I want to pass on some news that is, y’know, actually new. (Next week, I may write about what I call merit-selection fatigue, which afflicts anyone who has watched its fortunes wax and wane over a generation.)

The news is the release of a new report called “The New Politics of Judicial Elections.” It is a joint effort of the Brennan Center for Justice at the NYU School of Law, the National Institute on Money in State Politics and advocacy group Justice at Stake.

The 64-page report paints a pretty bleak picture of the current state of judge elections. In three chapters, the authors explore the money trail, record spending on TV ads, and the sour political climate that surrounds judicial elections.

You can read the complete report here. From the same page, you also can view the TV ads that they examine in the report. (Those videos are available as in video form and as storyboards.)

(Arizona, which has merit selection for appellate courts and the three largest counties, was mentioned in the study in regard to political fights over judicial selection. I wrote about one high-profile judicial retention election here.)

The fight over Arizona’s judicial merit-selection model is described in the report “The New Politics of Judicial Elections 2011-12.”

To mark the report’s launch, the groups held a media call last Friday morning. Here’s what they said on the call.

Bert Brandenberg, Executive Director of Justice at Stake, opened the dialogue by calling the politicization of judicial elections “one of the biggest democracy issues flying under the media radar screen.”

In recent years, “Millions of dollars raised by special interest groups were turning judges into fundraisers, raising fears that justice is for sale.”

In 2011-12, a record $56.4 million was spent in judicial elections, which Brandenberg calls “the new normal.” And that has become a trap for the judges, an arms race.

If we imagined that we could view matters transparently, Brandenberg reminded press on the call that 97 percent of all funds raised went to independent groups obliquely supporting or opposing candidates—not to candidates themselves. Those groups have no public reporting requirements.

“We depend on courts to be different from the other branches,” Brandenberg said. “But we ask judges to be Huey Long on the campaign trail, but then turn into Solomon on the bench.”

Also speaking on the call was Alicia Bannon, counsel at the Brennan Center. She opened by describing the “unprecedented spending” on judge election TV ads, coming in at more than $33 million in 2011-12.

As troubling as the dollar figures, she said, is the subject matter. More and more of the ads are becoming inflammatory—charging campaign opponents of protecting rapists or freeing terrorists. This “carnival atmosphere,” as she described it, is making judicial election ads almost indistinguishable from other political ads.

Bannon described reforms that the Brennan Center seeks: stronger disclosure laws to see who is trying to influence elections; stronger rules surrounding judge recusals; and public financing for judicial races.

At my request, Bannon kindly sent links for more about the Brennan Center’s work on “recusal reform.” Their 2011 report provides model rules for recusal standards. Their website also includes ABA testimony discussing their recommendations. As she said, “This work builds on a 2008 report which provides detailed analysis of the problem and our proposed solutions.”

The dialogue over how to sustain an independent but accountable judicial branch continues. Tomorrow, I’ll share some local news about merit selection. It arose at a recent terrific panel discussion (by coincidence, the same day as the media call), and when the unrelated topic of judicial elections arose, one panelist—a Texas judge—candidly offered his thoughts. And who doesn’t enjoy candid?

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